Hentz v. Wilborn

United States District Court, E.D. Wisconsin

August 29, 2017

RAYMOND HENTZ, Plaintiff,v.RANDALL WILBORN, Defendant.

ORDER

J.P.
STADTMUELLER U.S. DISTRICT JUDGE.

Before
the Court are various discovery motions filed by both
parties. The Court will turn first to Defendant's motion
to dismiss for failure to participate in discovery, (Docket
#27), as resolution of that motion will moot the others.

Defendant
asks the Court to dismiss this case because Plaintiff has
refused to participate in the discovery process.
Defendant's attempts at serving written discovery were
frustrated from the start because Plaintiff did not maintain
a current address with the Court. (Docket #19 at 2-3).
Defendant sent his requests unsuccessfully to two different
correctional facilities-on January 31 and February 20,
2017-before it learned, due to its own reconnaissance, where
the Plaintiff is currently incarcerated, Oakhill Correctional
Institution (“Oakhill”). Id. On June 6,
2017, Defendant sent correspondence to the Plaintiff at
Oakhill advising him that his discovery responses were
overdue and requesting that Plaintiff forward responses
immediately. Id. With the exception of providing
requested copies of grievances and one signed medical
release, Plaintiff did not provide other requested
information, including answers to interrogatories seeking
additional information about the circumstances of and
witnesses to the incident underlying his claim, information
about his health care providers, or medical authorizations
for any entity, including the Department of Corrections,
other than the jail where he was incarcerated during the
incident in question. (Docket #28 at 4). Plaintiff still, as
of Defendant's July 31, 2017 motion to dismiss, has not
supplied complete responses to Defendant's discovery
requests. Id. at 2, 4. Defendant states that
Plaintiff never made an effort to contact or communicate with
Defendant's counsel regarding the outstanding requests.
Id. at 2.

Then on
July 11, 2017, Defendant served a notice of deposition on
Plaintiff, informing him that his deposition would be taken
on July 27, 2017. Id. at 3. Plaintiff did not
contact Defendant's counsel to request that his
deposition be rescheduled or canceled, so on July 27
Defendant's counsel and a court reporter traveled to
Oakhill to take Plaintiff's deposition. Id. As
the court reporter attempted to administer the oath,
Plaintiff informed Defendant's counsel that he refused to
provide any testimony. Id. Defendant's counsel
states that “[d]espite requesting numerous times, and
attempting to obtain [Plaintiff's] agreement to respond
to simple background questions, [Plaintiff] insisted that he
would not respond without an attorney present.”
Id. at 4. Plaintiff then confirmed to
Defendant's counsel that he is not currently represented
by an attorney. Id.[1]

Understandably
frustrated with being forced to expend the time and resources
to travel to Oakhill in Oregon, Wisconsin, to take a
deposition in which Plaintiff refused to participate, and
having still not received complete written discovery
responses, Defendant has requested that the Court dismiss
this case either for failure to prosecute under Federal Rule
41(b) or as a discovery sanction under Federal Rule 37.
Id. at 5.

Dismissal
is appropriate here under either Rule 37 or Rule 41(b). The
dismissal of a case as a Rule 37 discovery sanction is
appropriate when the court finds willfulness, bad faith, or
fault on the part of the defaulting party. Brown v.
Columbia Sussex Corp.,664 F.3d 182, 190-91 (7th Cir.
2011). Under Rule 41(b), a case can be dismissed when
“there is a clear record of delay or contumacious
conduct, or when other less drastic sanctions have proven
unavailing.” Id. (quotation omitted).
Plaintiff's refusal to answer any questions during his
deposition, coupled with his delayed and incomplete responses
to written discovery, amount to bad-faith, contumacious
conduct. See Watkins v. Nielsen,405 Fed.Appx. 42,
44 (7th Cir. 2010) (dismissal of inmate's Section 1983
action under Rule 37 was appropriate where inmate failed to
timely and completely respond to discovery, produced no
documents, and failed to attend the final pretrial conference
despite a court order to appear). Further, Plaintiff has not
attempted to defend his conduct by filing a response to
Defendant's motion to dismiss. The Court will, therefore,
grant Defendant's motion to dismiss this action in its
entirety.[2]

Accordingly,
IT IS ORDERED that Plaintiff's motions
for extension of time (Docket #23 and #24) be and the same
are hereby DENIED;

IT
IS FURTHER ORDERED that Plaintiff's motion to
compel (Docket #25) be and the same is hereby
DENIED;

IT
IS FURTHER ORDERED that Plaintiff's motion to
produce witnesses (Docket #26) be and the same is hereby
DENIED;

IT
IS FURTHER ORDERED that Defendant's motion to
dismiss (Docket #27) be and the same is hereby
GRANTED;

IT
IS FURTHER ORDERED that Defendant's motion to
compel (Docket #18) be and the same is hereby DENIED
as moot; and

IT
IS FURTHER ORDERED that this case be and the same is
hereby DISMISSED.

The
Clerk of the Court is directed to ...

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